Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s by Risa Goluboff (review)

On the books since the incorporation of the United States, vagrancy laws were long considered indispensable to the power of the police to keep the public peace. In cases like Prigg v. Pennsylvania (1842), vagrancy laws were even identified as the benchmark against which the legitimacy of other police measures was to be determined. Even as other criminal regulations were subject to scrutiny by courts at all levels, vagrancy statutes were considered to be self-evidently legitimate, giving the police the near-absolute discretion to detain and arrest anyone perceived as suspicious, dissolute, disorderly, threatening, immoral, or otherwise out of place.

This outlook changed quickly in the 1960s as these previously inviolate laws were subjected to ongoing legal challenges, culminating in Papachristou v. Jacksonville (1972), a case that concerned two white women and two black men arrested as vagrants while driving together in a car. Papachristou concluded with the Supreme Court striking the law in question as unconstitutionally vague, forcing police to find other means to justify summary on-the-street inquiries and misdemeanor arrests.

Goluboff tells the story of the de-legitimation of vagrancy laws in the United States during the 1950s and 1960s, starting with the landmark arrest of Isidore Edelman, a Communist-leaning soapbox speaker whose case was considered by the Supreme Court in 1949. Moving forward from Edelman, Goluboff proceeds to survey the legal challenges brought by a wide array of litigants—indigent persons, beatniks, and sexual nonconformists as well as civil rights, free speech, and anti-war protestors.

Vagrant Nation is at once a study of constitutional change and a history of social movements. Rather than focusing exclusively on arguments made in higher courts, Goluboff begins with the challenges to routine arrests made by ordinary defendants, such as Sam Thompson, an African-American man repeatedly charged as a vagrant by the Louisville police despite the fact that he supported himself with odd jobs and stayed out of trouble. In vivid detail, Goluboff describes the situation of people like Thompson along with others, like the civil-liberties lawyer Louis Lusky, who helped Thompson advance his case in the courts. She combines this biographical method with formal analysis of the legal questions at issue in the cases, ranging from substantive and situational concerns (such as whether or not a loiterer was obstructing traffic) to basic points of constitutional interpretation (the fact that vagrancy criminalized a status, or a kind of person, rather than an action).

The book’s approach is both accessible and compelling, well suited to the material. It shows not only how social change led to a legal revolution but also how legal change helped to consolidate new social movements around constitutional questions about the right to assembly and free expression.